Pre-Trial

• Author: Judson W. Starr/Amy J. McMaster/John F. Cooney/Joseph G. (Jerry) Block/David G. Dickman
• Pages: 79-90

Page 79

Chapter 6:

Pre-Trial

From the rst client interview or assignment of a new case, the diligent attorney is thinking about trial

and trial strategy. Although the majority of environmental criminal cases eventually sett le, many

reach the pretrial stage. Discovery, depositions, motion practice, subpoenas, and familiarity with the

Federal Rules of Criminal Procedure are therefore just a few of the areas in which a criminal environmental

attorney must be competent, if not downright sav vy. is chapter is intended to highlight a few nuances

within these general areas.

I. Discovery

“ere is no general constitutional right to discovery in a criminal ca se.”1 Unlike civil discover y, where

some materials are automatically produced as a matter of right, in criminal prosecutions, the defendant

must invoke the right to discovery.2 Over time, a patchwork of statutory and judicial rules has evolved to

govern this discovery. ese rules include: (1) the Jencks Act3; (2) the Federal Rules of Criminal Procedure;

(3) the Freedom of Information Act; (4) Brady v. Maryland4; and (5) Giglio v. United States, among others.5

In 2010, the U.S. Department of Justice (DOJ) also issued a series of three guidance documents regarding

the federal government’s pretrial discovery obligations.

A. The Jencks Act

In Jencks v. United States,6 t he defendant appea led his conviction for ling an adavit that falsely stated

he was not a member of, or aliated w ith, the Communist par ty. Crucial testimony against Jencks was

provided by two undercover Federal Bureau of Investigation (FBI) agents, who testied that they had made

regular oral or written reports to their superiors regarding the matters about which they had testied. Prior

to trial, Jencks moved for production of these reports, in order to impeach the agents’ testimony, but his

motions were denied. e U.S. Supreme Court reversed, nding that the denial of Jencks’ motions to pro-

duce the reports was reversible error, holding:

Every experienced trial jud ge and trial la wyer know s the va lue for i mpeaching purposes of statements of

the witne ss recording the e vents before time dul ls treacherous memor y. Flat cont radiction betwe en the wit-

ness’ te stimony and the version of the events g iven in his reports is not the only test of incon sistency. e

omission f rom the reports of facts related a t the trial, or a contrast in emph asis upon the sa me facts, even a

1. Weatherford v. Bursey, 429 U.S. 545, 559 (1977).

2. Compare Fed. R. Crim. P. 16(a)(1), with Fed. R. Civ. P. 26(a).

3. e Jencks Act requires prosecutors to turn over to the defense statements made by testifying witnesses if those statements are in the prosecutor’s

possession. See 18 U.S.C. §3500; Fed. R. Crim. P. 26.2.

4. 373 U.S. 83 (1963).

5. 405 U.S. 150 (1972).

6. 353 U.S. 657 (1957).